Andhra Pradesh High Court - Amravati

Balumuri Kiran Kumar, vs The State Of Andhr Apradesh on 20 January, 2021

Bench: Lalitha Kanneganti

a

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATE

   

WEDNESDAY, THE TWENTIETH DAY OF JANUARY
TWO THOUSAND AND TWENTY ONE

'PRESENT: oF i
THE HONOURABLE SMT JUSTICE LALITHA KANNEGANTI © .

CRIMINAL PETITION NO: 5825 OF 2020
Between:

Balumuri Kiran Kumar, S/o Dharmayya, Aged 32 years, Occ: News reporter, R/o
ST Colony, Chinturu Village, East Godavari District.
... Petitioner/Accused No.3
AND

The State of Andhr Apradesh, Rep. by Public Prosecutor, High Court of Andhra
Pradesh at Amaravathi.

... Respondent/Complainant

Petition under Section 437 and 439 of Cr.P.C, R/w. Sec 37 of NDPS Act, praying
that in the circumstances stated in the grounds filed the Criminal Petition, the High
Court may be pleased to enlarge the Petitioners on bail in Cr.No.18 of 2020 on the file
of Donkaral Police Station, East Godavari District.

The petition coming on for hearing, upon perusing the Petition and the grounds
filed in support thereof and upon hearing the arguments of Sri T D Pani Kumar
Advocate for the Petitioners, and of Public Prosecutor for the Respondent and the Court
made the following.

ORDER:

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI CRIMINAL PETITION NO.5825 of 2020 ORDER:-

This petition is filed under Sections 437 and 439 of Code of the Criminal Procedure, 1973 (for short 'Cr.P.C.') seeking regular bail to the petitioner/A-3 in connection with Crime No.18 of 2020 of Donkarai Police Station, East Godavari District for the offence punishable under Section Section 8(c) r/w 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "NDPS

Act").

2. The case of prosecution is that on 24.07.2020 on receipt of credible information about illegal transportation of ganja, the Sub Inspector of Police along with staff and mediators reached the scene of offence and while conducting vehicle check, they noticed one Hero Glamour motorcycle and on its back side one heavy container lorry coming from Sileru village. On seeing the police, two persons on the motor cycle tried to escape from there and on suspicion the police checked the container and found 42 bags of ganja each bag weighing 35 KGs, total 1470 Kgs from the container lorry. Basing on the same the police registered the above crime, arrested the accused and

remanded them to judicial custody.

3. Heard Sri T.D.Phani Kumar, learned counsel for the petitioner

and the learned Public Prosecutor for the respondent-State.

4. Learned counsel for the petitioner/ A-2 submits that the

petitioner is working as news reporter covering news to

Doordarshan / Saptagiri Channel and other private channels. As the petitioner covered unlawful activities of some of the authorities in police Department, they bore grudge against the petitioner and implicated him in this case. He further submits that except alleged confession made against the petitioner by the inmates of the vehicle, there is no other material to show that the petitioner involved in the crime. the petitioner is languishing in jail from 24.07.2020 and so far the police neither. filed charge sheet nor any application seeking extension of time to file Charge sheet. Hence, the petitioner is entitled

for statutory bail.

5. The learned Public Prosecutor also does not dispute the fact that even after lapse of 180 days, neither the police have filed charge sheet nor an application seeking extension of time before the Court

below as contemplated under Section 36(A of the NDPS Act.

6. Section 36(A) of the NDPS Act reads thus:

36A. Offences triable by Special Courts.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers--

[email protected]) when such person is forwarded to him as aforesaid; or

Gi) upon or at any time before the expiry of the period of detention authorised by him, that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having Jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offenc under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under cluase (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under section 36,

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one hundred and eighty days": Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. ]

Section 167 (2)of Cr.P.C reads thus:

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and

if he has no jurisdiction to try ine case or commit it for trial, and considers

further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) | the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person in custody under this paragraph for a total period exceeding,-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(1i) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]

(b) no Magistrate shall authorize detention in any custody under this section unless the accused is produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the police. ! Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;].?

Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the

order authorizing detention.

8. The Hon'ble Apex Court in case of Uday Mohanlal Acharya v.State of Maharashtra! has observed that personal liberty is one of the cherished objects of the Indian Constitution and deprivation of

the same can only be in accordance with law and in conformity with

1 (2001)5 SCC 453

the provisions thereof, as stipulated under Article 21 of the Constitution. When the law provides that the Magistrate could authorize the detention of the accused in custody upto a maximum period as indicated in the proviso to sub Section (2) of Section 167 of Cr.P.C, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and inconformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution of India and the Hon'ble Apex Court in recent judgment in S.Kasi v. State? wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge sheet.

Additionally, it is well settled that in case of any ambiguity in the

- construction of a penal statute, the Courts must favour the

interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedure

providing for the curtailment of the liberty of the accused.

9. In view of the foregoing reasons as the charge sheet is not filed

within the statutory period of 180 days nor any application seeking

2 2020 SCC OnLine SC 529

To,

OO A ow

extension of time is filed, the petitioner is entitled for statutory bail, which is an indefeasible right of the accused as laid down by the

Hon'ble Apex Court in catena of cases.

10. Accordingly, this Criminal Petition is allowed. The petitioner / A-3 shall be enlarged on bail on execution of self bonds for Rs.50,000/- (Rupees fifty thousand only) with two sureties for a like sum each to the satisfaction of the Court of the Judicial First Class

Magistrate, Rampachodavaram.

Consequently, miscellaneous applications pending, if any, shall

stand closed.

Sd/-K.TataRao .

theo SECTION OFFICER

The |! Additional District and Sessions Judge, East Godavari District At Rajamahendravarm.

The Superintendent, Central Prison, Rajahmundry.

The Station House Officer, Donkaral Police Station, East Godavari District.

One CC to Sri. T D Pani Kumar Advocate [OPUC]

Two CC's to Public Prosecutor, High Court of AP, Amaravati[OUT]

One spare copy

IITTRUE COPYI/ For